Elizabeth Ulrich has a piece in the Nashville Scene on the latest twist in the Fisk-O'Keeffe lawsuit. She has more on the baffling lack of due diligence on the part of the university before it entered into the now-cancelled settlement:
"[Fisk spokesman Ken] West wouldn’t comment on whether Fisk’s financial problems could’ve driven school officials to rush into the settlement before determining the true worth of 'Radiator Building' … [I]t’s no surprise that university officials might not have known what 'Radiator Building' would’ve actually sold for, but there’s no indication that they made any effort to figure it out. West says he isn’t sure if Fisk consulted any outside art experts about the $7 million offer. West also wouldn’t comment on what Fisk did, outside of consulting Christie’s [two-year old $8.5 million] estimate, to weigh the museum’s offer ...."
She also offers this assessment of the underlying lawsuit:
"With the case returning to court now, it seems Fisk’s chances to prevail over the O’Keeffe Museum are not so good. Fisk’s main argument in court has been that 'Radiator Building' is a personal O’Keeffe painting—not part of the Stieglitz Collection—and not subject to the no-sale condition. But the director of the university’s galleries from 1992 to ’99, Kevin Grogan, has testified that 'Radiator Building' is indeed part of the main collection. ... Fisk hasn’t got money to blow on litigation. [Fisk attorney Mike] Norton says the settlement was appealing because Fisk knew it could burn a lot of time and money in court and still get stuck not being able to sell any paintings. 'When you’re in court, even if your chances of winning are three in four, would you take $10 today instead of $20 or $30 three years from now?' he says."
This is a point that I think is overlooked by those cheering the cancellation of the deal. You can't evaluate the adequacy of the price to be paid by the museum without also considering the strength of its legal claim. Let's say there was no doubt the no-sale condition applied and the university therefore had no right to sell the paintings. And let's say that, under those circumstances, the university approached the museum and asked it to consider waiving the no-sale condition, as a way of helping it solve its overall financial difficulties. In that scenario, it wouldn't seem crazy to me for the museum to ask for the O'Keeffe painting for free, in exchange for waiving the no-sale condition on the Hartley, thereby allowing the university to raise $8 or 10 or 15 million (Christie's appraised it at $8.5 million in 2005) that, because of the no-sale condition, it would not otherwise been able to raise. Now, once you relax the assumption that there is no doubt about the no-sale condition, the picture changes a little, but that may be why the museum was also throwing $7 million into the pot. If Ulrich is right about Fisk's chances of winning the lawsuit, supporters of the university may come to regret the decision to leave twenty million on the table just because it wasn't forty.
